In Bl(a)ck Tea Society v. City of Boston, the First Circuit Court of Appeals affirmed, without dissent, a district court's ruling denying protesters at the 2004 Democratic National Convention a preliminary injunction designed to force the City of Boston to modify its designated demonstration zone (DZ) and remove some of the draconian security measures surrounding the zone. The injunction was denied by Judge Woodlock after he personally inspected the DZ and determined that, given “constraints of time, geography, and safety,” there were no viable alternatives—to site location or construction of the DZ itself—that could reasonably occur before the convention started. Judge Woodlock also held an ex parte and in camera hearing with federal officials to assess whether there had been specific threats aimed at the Convention, political leaders, or the City of Boston. The district court, in its memorandum regarding the motion for a preliminary injunction, excluded from consideration any information from the ex parte meeting as a basis for deciding the case on the merits. Although the information was not included in the decision-making process, Judge Woodlock alluded in his ruling that the United States did indeed have specific threat intelligence directed at the Convention and its participants. A panel of the First Circuit Court of Appeals agreed with the district court and affirmed the ruling as an appropriate time, place, and manner restriction on First Amendment freedoms. Although the district court did not use the ex parte threat intelligence it received from the United States, Bl(a)ck Tea Society highlights the post-September 11th tension that now exists in balancing real security risks with a full and fair opportunity to be heard by all parties. Moreover, this case reflects how constitutional rights and traditional Supreme Court doctrine, used to analyze abuses of these rights, may be impacted by the post-September 11th political and social environment. This conflict of policies and privileges has a direct impact on the decision-making role of judges in fashioning opinions based upon all the available information. To be sure, there will be many more public events of all sizes where protestors will want to have their message heard. Simultaneously, government security officials will be weighing terrorist threat information, both domestic and international, as well as other security risks posed to participants. Inevitably, a collision between First Amendment freedoms and the need for a secure environment in which to express those freedoms will follow. When this collision occurs, a judge will once again be required to balance the basic tenet of the adversary system against the desire to craft a judgment that considers information germane to the underlying safety of both the litigants themselves and the public as well. Because First Amendment rights—and necessarily other protected rights—will likely again be curtailed at political rallies, sporting events, or any other occasion where masses of demonstrators want their messages heard, the question becomes: Should the judiciary be allowed to use classified information obtained ex parte and in camera to help in the judge's decision-making process in deciding the merits of a case? This Note considers whether the historic principle of excluding ex parte information to decide issues on the merits remains practical when national security is intricately enmeshed in the litigation.
Brian M. Tomney,
Contemplating the Use of Classified or State Secret Information Obtained ex parte on the Merits in Civil Litigation: Bl(A)ck Tea Society v. City of Boston,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol57/iss2/14